The opinion of the court was delivered by
Cole, J.:This action was commenced before a justice of the peace in the city of Fort Scott, Bourbon county, by T. E. Furst, to recover damages arising out of the alleged killing of one black mare and/the injury to one colt by the railroad company. The bill of particulars filed in the cause set up the killing of the mare and injury to the colt in separate counts, or as separate causes of action. It alleged, first, that the mare was killed by the negligence and carelessness of the defendant company in the operating of its road, and then stated, for the second cause of action, that the defendant had been guilty of negligently and carelessly injuring the colt in question. There was *266the further statement in this connection to the effect that the road of the defendant, company was not properly inclosed and fenced, and that the gate, through which stock got upon the track, was carelessly and negligently constructed. This cause having been appealed to the district court, a trial was had, resulting in a verdict and judgment for the plaintiff below, from which the railroad company brings the case here for review.
Several errors are complained of, but we shall consider only those necessary to the determination of this case. The court instructed the jury upon the theory that the bill of particulars in this case stated tWo separate and distinct causes of action, one founded upon the negligence'of the company in the operation of its road,.and the other founded upon the failure of the company properly to construct a gate leading to a private crossing connecting one portion of the plaintiff’s farm with another. The first of these causes of action had relation to the killing of the mare, and the second to the injury to the colt. With regard to the first cause of action, the following instruction was given:
‘ ‘ In arriving at your verdict on this first cause of action, you may consider, only on the question of negligence, what the evidence proves as to the operation of the train. The evidence introduced as to whether the railroad was fenced, or a gate in such fence was defective in construction, or had become defective since its construction, should not be considered by you.”
Now, it is clear under this instruction that the only evidence the jury were to consider in determining whether the railroad company was liable for the killing of the mare was such evidence as related to the manner of the running of the train which it was *267claimed killed the animal, and, so far as the trial of this case was concerned, it was the duty of the jury to consider the instructions as given,by the court as the whole law in the case. As was said by PIokton, C. J., in the case of U. P. Rly. Co. v. Hutchinson, 40 Kan. 51, “Whether the instruction is correct or not is immaterial. It was the law of the case, by which the jury should have been guided.”
Under the instructions of the court, if the jury found that there was no negligence upon the part of the railroad company in operating its road, then, so far as the damages arising from the death of the mare were concerned, they should have found in favor of the defendant. In this case, besides the general verdict, certain special findings of fact were made by the jury. Of these findings, the only two referring to the point now under discussion were numbers 9 and 10, which were as follows :
“Ques. 9. Was the defendant guilty of negligence,' causing the injury .and death of the. animals in question? Ans. Yes.
“Q,. 10. If you answer the last question (No. 9) in the affirmative, state fully in what the negligence of the defendant consisted. A. In an imperfect fastening on the gate.”
The answers to ” these questions plainly indicate that the only negligence the jury found the defendant company guilty of was in the construction of the gáte in question; and such a finding having been made, it was error for the court to render judgment against the railroad company'for the value of the mare in question, and to refuse a new trial in the case.
It is urged by counsel for defendant in error that the trial court gave to the jury a harsh construction of the pleading in question, that the cause was not *268tried upon tlae theory of two separate causes of action until the time arrived to instruct the jury,-and thaj; the court abused its discretion in refusing to permit an amendment to the pleading after the instructions had been given. We are inclined to agree with counsel upon the pleading in question, but that is not the question now at issue. The trial court did thus construe it and instruct the jury in accordance with such construction, and no objection was made to the instruction given. The question this court must answer is, whether material error was committed by the court in rendering judgment against the railroad company under the construction and theory , upon which the case was tried, and we are clearly of the opinion that such error was committed.
It is impossible to determine from the record what amount was allowed by the jury for each of the animals for which damage was claimed, there being no special findings upon the point. Plaintiff in error has filed a motion in this court for judgment non obstante, and cites in support thereof Adams v. A. T. & S. F. Rld. Co., 46 Kan. 161. The circumstances of the two cases are entirely dissimilar. In the case at bar, the question, so far as the injury to’ the colt is concerned, was whether the gate provided by the railroad company was properly constructed, while in the case referred to the animal injured entered upon the road through an open gate, as in this case, but the sufficiency of the fence and gate provided by the railroad company was not questioned, and the court so distinctly stated in the opinion.
The judgment of the district court is reversed, and the case remanded for a new trial.
All the Judges concurring.